The trials and tribulations of a judicial reformist, her efforts to make change and bring transparency into the court system, and the system's response. Attorney Clark also comments on judicial reform issues around the USA, and lawyer rights. Go to About to report judicial misconduct or leave a note for Attorney Clark.

Category Archives: A Decade of Observing the Bench: 2002-2012

In 2003 I had an experience with Minnesota Judge Lucy Wieland that opened my eyes to a whole set of problems. I represented a man who was being criminally charged with “resisting arrest” by Minneapolis Police (this is technically a charge of “obstructing legal process,” current statute here, but it is commonly referred to as resisting arrest.)

I stumbled into this case because I was interested in a different case that this client had, which raised important First Amendment issues. I took that case pro bono (meaning I did not charge the client legal fees). That case was dismissed, and I ended up litigating this second “resisting arrest” case.

I learned that there was a videotape of the incident that had been sitting in police inventory for six months.

I, myself, went downtown to view a videotape at the Minneapolis City Attorney’s Office. The videotape showed the ‘incident’ beginning with a police officer punching at my client, which caused the video camera he was holding to go askew and drop to the floor. The video showed, at the end, black leather jackets striking (hard) at something on the floor. Based on the context, it appeared the thing on the floor was my client. The video was relevant to the charges, because police were claiming that the man (on the floor) had been the one doing something wrong. It’s my job when I’m defending someone to gather as much evidence as I can. Certainly this evidence was important. And videotape evidence is perhaps the best type of evidence around to be able to show the jury what happened.

I ordered a copy of the videotape from the assistant and was told it would take only hours to prepare. I went to my car, immediately made a call to say what I’d seen. I told a number of people that day, including the US Department of Justice. More than one person predicted I’d never see the video images again.

This shocked me. I guess I was naïve.

By the end of the day, I had filed an affidavit stating what I had seen on the videotape.

Suddenly, Lois Conroy (the Prosecutor in the case) got involved and claimed it would take weeks to make a copy of the videotape. Hmmm.

When I finally got the “copy” – you guessed it, certain scenes were deleted including the scene at the beginning and the scene at the end.

My client made several motions, but we were having a hard time getting them decided by a judge.

There are many wonderful police officers who do great work at a tough job. I have encountered them in my practice (and just like good judges, they know who they are). I get along pretty well with a lot of law enforcement. I’ve had police who I’ve cross examined on the witness stand call to retain me as their attorney. Most police respect a defense attorney who works hard at her job. You might be surprised to hear how many law enforcement officers (and other government employees who work in the criminal justice system) have told me that they carry my name and number in their wallet, in case they get charged with something. It’s clear to me that they know that innocent people can and do get charged. And they know how hard I fight for a client who I believe is innocent.

But like any group, there are those in law enforcement who do wrong. We, the public, count on judges to hold those people accountable. The law does not work if we make ‘special exceptions’ for government workers. It seems that a lot of the hue and cry from the public lately, is around judges refusing to follow the law, instead acting to further some personal or political interest of their own.

Back in 2003, we finally ended up with Judge Lucy Wieland presiding in a June 6 hearing. This was the year before she became Chief Judge of the Fourth Judicial District (Hennepin County, Minnesota).

Knowing what I know now, I would have asked how she came to be on this file. Judge assignments are a huge part of justice. (More on that in later posts.)

As it was, I came to the hearing presuming I’d get a fair judge who would review the evidence and hopefully be quite concerned that we were not getting the full evidence. Something quite opposite occurred, and such began my lessons in accusing system insiders.

Minneapolis Prosecutor Lois Conroy came into the courtroom almost with a swagger. She seemed to me to be extremely confident that she was going to prevail. I did not know why she was acting that way. Knowing what I know now, I would have wondered whether ‘behind the scenes’ (ex parte) communications had occurred before the hearing. No matter what people say, behind the scenes communications can be common when it comes to certain types of cases. (More on that later.)

Judge Wieland’s behavior appeared odd to me. I didn’t have experience with her. But even so, I couldn’t help but be shocked by what she did (and didn’t do).

I had the videotape with me and a portable videotape player. She didn’t want to view it. She tried to keep the hearing excessively short. She seemed nervous. She’d make a pronouncement and then literally try to run off the bench and out the back door. The hearing ended abruptly when she left the room.

I was, quite frankly, mind-boggled. Rather than scrutinizing the conduct of the State, Judge Wieland threatened me with sanctions for “excessive litigation around these issues.” Hmmm.

The ability of the bench to sanction lawyers is a necessary tool in the right situation. But over-use of sanctions is as much an issue for judicial misconduct as ex parte communications or ruling in favor of a friend. It’s simply not permitted to sanction an attorney (or even to threaten to do so) because the judge doesn’t like the attorney’s argument, or wishes the client wasn’t raising the issue or because the judge is angry that a government employee is being accused. Indeed, the judicial branch exists so that people can receive a full, fair and honest assessment of government conduct.

Judge Wieland’s threat of sanctions was designed, in my view, to get me to ‘back off’ and not make the accusation. This is a sad state of affairs.

How did we get here in this democracy? I have many theories on that. Suffice it to say that some judges are willing to rule to protect government employees, rather than applying the law and the constitution to the facts of a particular case. The whole point of a third branch of government was to create a ‘watchdog’ over the other two. (More on that later.) This 2003 hearing with Judge Wieland became a huge lesson for me. I am sorry to have to say that it was my opinion she was protecting government, rather than seeking the truth.

I have since learned that this is all too common in the justice system.

People who have not encountered this dark side of the justice system might not know what I am talking about. Many people say to me once they are wrongfully charged, or their son is, or a friend is, that they had no idea how bad things can be. I believe that to heal this justice system we need to talk about these problems. The goal is to have each case (civil, family or criminal) be decided on the law and the facts. This at the same time protects the integrity of the justice system. It will also save money: who wants to pay taxes for a 20-year prison sentence if the guy didn’t do it? (I haven’t found one person who told me they wanted to do this.) Who wants to pay for a judge to rule on a civil case, if the judge is just doing what his government buddies want? We don’t have that kind of money to spend anymore.

This kind of paradigm shift is possible. And the public’s interest in the justice system is the engine that makes change.

But what about the client in this 2003 case? It’s scary enough when you are a private person being accused of a crime by government and feel you are being railroaded. But its really scary (like those movies where the star is trapped in a mountain town and can’t leave, and the sheriff is working for the bad guys) when the courthouse is not a safe place to raise concerns about whether you got all the evidence. Although it would have been easier for me as a lawyer to ‘back down,’ that would have made me a coward and not worthy of my law license. What makes a professional is someone who puts their client before themselves.

So I forged on. (Do you think that could be why certain government officials are not so happy with me…?)

I learned that shortly after the hearing, Judge Wieland had signed a sua sponte order prohibiting any further motions in the case, and forcing the case to a trial. Her order blocked my client’s ability to litigate the destruction of videotape evidence. Hmmmm.

So what drove that decision?

The client was forced to file an action with the Court of Appeals, which did prohibit Judge Wieland’s sua sponte order (meaning it had no force or effect). That, at least, permitted further litigation of the issue before a different judge. And the entire case against that client was eventually dismissed by that judge.

In 2002, I filed a federal civil rights action and federal district judge Paul A. Magnuson was assigned. The topic under discussion in this post didn’t have anything to do with the case itself. This case marked the first ever recusal motion that I filed on behalf of a client.

At the time the case began, Judge Magnuson was the Chief Judge of the District of Minnesota. But by the time the recusal motion was filed, Judge Magnuson had taken senior status, and Judge Rosenbaum had become Chief Judge.

Before I began representing clients who sued government, I had never had any problems with judges or with my license, never been sanctioned by a judge, never even had anyone even seek sanctions against me.

Of the various ‘issues’ I have had with judges over the 10+ years that I have been vigorously litigating against government, a disproportionate percentage of them have been with chief judges. In my humble opinion, each time we create a position of public authority, we must consciously institute limits on that authority. And, I don’t think we (society) have done that, when it comes to chief judges. It’s a challenge for any human being to stay within the rules when lines have been firmly drawn. It’s nearly impossible to stay within the lines – if there aren’t any.

The civil rights litigation was uneventful until July 2002. Out of a number of claims alleged, the defense attorneys filed a motion to dismiss only one. This was curious, but that was the decision defendants made.

After the ‘Rule 12’ motion was filed, we received seven (7) different versions of the police report about the incident. This was fairly shocking, and reviewing those different versions showed graphically how police had changed the story to fit their needs.

We sought to amend the complaint to add in the 7 versions of the police reports, and that motion was granted.

The defense attorneys affirmatively turned down the opportunity I gave them (on behalf of Plaintiff) to amend their Rule 12 motion in light of the now-amended complaint. Again curious, but that was the decision that they made.

A voicemail from a court clerk started a series of events which can be summarized as follows:

1. It became clear (and it was never disputed) that the Court had affirmatively communicated ex parte to the defense attorneys that they should withdraw their Rule 12 motion and re-file it. Plaintiff had not been included in that communication.

2. When Plaintiff counsel began investigating this, Defense counsel sent a letter confirming that they were withdrawing their motion “at the direction of the Court.” This confirmed the ex parte communication.

3. When I called chambers to inquire how to raise the issue with the court, a law clerk suggested that I send a letter. But when I did, Judge Magnuson sent a letter admonishing me, and stating that in the future plaintiff must file a formal motion. This was curious, as the Judge also stated that he had specifically “authorized” defendants to re-file their motion.

Now, I’m all for formal motions. That is, if everyone has to follow the same rules. I am against one side being allowed informal access to the Judge, while the other side must bring formal motions. I don’t think I’m alone in that belief.

These issues were initially pursued informally. And Plaintiff waited months to see if the Judge would self-recuse.

As you might have guessed, when the defense “re-did” their motion, they had benefitted from the ‘re-doing,’ and they even came up with a new argument that ended up winning the case for them. It’s not clear where that came from.

When my client began to consider a recusal motion, I read every federal recusal case in the country that was available online, or in compendia. I also read some state cases.

I noticed a theme in my research that I found unsettling. There are a number of “technical” requirements for federal recusal motions. I noticed that a whole a lot of decisions I read did not reach the merits of the recusal motion. Instead, the motions were rejected due to ‘technical deficiencies.’

Given the underlying policy in the justice system to deal with issues on their merits, this was troubling.

Needless to say, with that research under my belt, my motion did not have any ‘technical deficiencies.’ Plaintiff argued that the defense attorneys had made their choice (not to amend their motion), and that should have been the end of it. The Court should not have intervened to give them advice.

Plaintiff’s argument was that the district court had essentially ‘coached’ the defense attorneys on how to better make their motion.

These were intellectual arguments, made after reading copious cases. Not only was the argument sound, ethics rules and case law supported the conclusion.

Recently, the Minnesota Supreme Court decided a ‘coaching’ case, holding that a state criminal judge had initiated two ex parte conversations with the prosecutor during which he coached the prosecutor on what arguments to make. Quoting a 1950 case, the Minnesota Supreme Court stated, “A judge ‘should not act as counsel for a party by raising objections which the party should make.’” The Supreme Court compelled disqualification of that judge. See State v. Schleinz.

My client filed a motion to recuse judge Magnuson in the civil rights case. And to his credit, Judge Magnuson granted the motion to recuse on February 18, 2003. Although it appears the Judge had become more emotional than is optimal, it also appears he understood that, and his maturity as a judge showed in his granting of the motion.

Judge Magnuson’s recusal order could have simply stated that he was recusing. Instead it stated, “[t]here are certain benefits to assuming senior status. One of those benefits is not having to put up with Plaintiff’s counsel.”

I found this unfortunate. It did not lead by example. Or rather, it did. This order set the stage for what became a literal string of judicial orders in which certain judges apparently thought it was permissible for them to take a swing at me (Jill Clark) via judicial order. (More about that in later posts.)

Over the years, I would become steeled to this type of judicial response. Although I learned to cope with it, that doesn’t mean I think it is befitting of the high office of judge.

Judges sit in judgment, accusing private people of bad acts, misconduct, and crimes. They ask members of the public who are accused, to sit quietly in their courtrooms and be respectful of the process. Should members of the public expect anything less from a judge who is accused?

Judge Wexler finally denied the statement he’d made in chambers (“This is not the first black person to appear in my courtroom. If we allow these people to bring these motions, they will clog the system”), during the judicial campaign.

I filed to run against Judge Wexler for his state judicial seat, 53, which is located in Hennepin County, Minnesota.

Although at first I didn’t think I’d talk publicly about his statement, after talking with the community, I did.

This was 2002, the first judicial campaign around the country, post White. I wouldn’t have run had it not been for the White decision.

Even in the wake of White, I was nervous about what I could say, and what was prohibited. I spent about a week reading every case I could find that had been brought against a lawyer who was campaigning for judge. Although I might have missed a few, I really did do a nationwide survey, reading everything I could get my hands on. This was a disillusioning time for me. I saw a real pattern in these cases. The accuser was routinely the incumbent judge (being challenged in the election), the prosecutor was the “ethics” police, and the loser was routinely – you got it, the lawyer running for judge.

This did not seem to be about ethics to me. It seemed like an old worn out tactic used in many campaigns, to hit your challenger to try to discredit them. If you can get government to hit your challenger, all the better.

This was a dark side of the justice system that I was seeing for the first time. The message seemed clear: danger, beware, if you run for judge you will risk your career. I could not be proud of this history. And I really understood then the need for the White decision.

I learned that the lawyer who had campaigned for judge against Judge Wexler in the previous election had been investigated by the ethics police because he used the word “few” when he they said he should have said “a couple,” in describing prior ethics problems for Judge Wexler. So I got the game.

(This technique by incumbent(s) would continue, more on that in later posts.)

Even armed with all my research, I look back now and see how naïve I was. I just didn’t realize how my life would change simply by signing that affidavit of candidacy. It does seem to me now that there are judges who don’t want to have to campaign. It’s one thing to run for office when there is no one else on the ballot. I do understand that it is altogether another thing when you have a challenger who can speak.

Some focus on the money, that we should not put money into judicial campaigns. Money in all campaigns is a continual issue. All efforts to deal with the issue seem to fail over time. But leaving that aside, I do wonder whether the issue is better described as not wanting to campaign.

Me, I loved the campaign. I went door to door in Hennepin County (you cannot knock every door in Hennepin County, but you can knock a lot of them), talking to people about the justice system. I focused on the way in which the courts administer justice, rather than any particular issue.

And people wanted to talk. I stopped in coffee shops, went to parks, attended outdoor events. And in every venue, I found people who wanted to talk about how we could better administer justice.

I have been stunned by the argument that the average person has no opinion about the courts, doesn’t care about judicial elections. I just did not find that to be true. I talked to people from all walks of life, and most were happy to be asked.

The whole ‘hot button issue’ thing got blown out of proportion. Some people wanted to talk about those, but mostly those were lobbying groups, seeking some type of candidate commitment.

I felt the campaign expanded me as a person and as a lawyer. I have often thought about how the bench could view campaigns in a positive light. This is an opportunity to focus on getting feedback from the public. Some judges do take time during the year to meet with the community. But many are, like most of us, too busy doing the day to day work to get around to it. Campaigns force public servants out into the community to walk among the public. Who wants to miss this fabulous opportunity to focus on how justice is dispensed?

My pitch to my public, was that the way in which Judge Wexler administered justice should be scrutinized. It’s one thing to seek efficiency. It’s another to let efficiency become the engine to the train, at the expense of everything else. I focused on how change was needed to make the system more fair.

Judge Wexler decided to deny that he had made the comment in chambers that day.

Of course, having been in the room, I knew his denial was contrived.

I can’t say I was shocked, but I was disappointed. And I did see the potential for ‘politics’ in judicial elections. I noticed politics in the union endorsement (now, why doesn’t anyone complain about unions being able to endorse candidates for judge?).

I saw politics in the StarTribune endorsement. The StarTribune had reported that in 1991 a lawyer

overheard Wexler make a racial remark. As Wexler reviewed the description of extremely violent behavior involving a couple, she said, he asked an attorney about their race. When she said they were black and asked whether that was significant, he said: “I don’t know anymore. It seems that some people are more prone to certain types of behavior than other people.”[1]

With full knowledge of that story, and the statement he had made to me in chambers in 2002, the StarTribune endorsed Judge Wexler, saying he was not the “architect” of the problem. I have never understood what that meant, but the overall meaning of the endorsement was clear: if you are sitting judge you are given lots of leeway.

But in 2002 I had the right to say those words about Judge Wexler and to discuss what those words said about the attitude he brought to the job of judge. This, in itself, was change.

Just after midnight, the vote tallies rolled back toward Judge Wexler, and he kept his seat. But my field of vision had been expanded, and I began to see things in the justice system I had never noticed before.

Watch for A Decade of Observing the Bench: 2002: Judge Zimmerman

[1] StarTribune May 25, 1993, “Resolution of Hennepin judge’s sex-harassment case is questioned,” David Peterson, Staff Writer. This article also states that Wexler “denies parts of that claim.”

In 2002, I was representing a woman born in Ethiopia in a state criminal action. In my opinion, the criminal case should never have been brought. I would come to learn a lot about such cases. But this blog really features my experience with Judge Wexler.

At the time the Honorable Thomas W. Wexler was an elected judge, serving on the Hennepin County bench in Minnesota. (He is no longer an elected judge.)

I believe it was the first time I had encountered Judge Wexler in a case. Upon arriving at court that day (having subpoena’d witnesses, and with an expert witness waiting in the lobby to testify), we have been told our client’s motion would not get heard. This was a problem for my client. My client had a constitutional right to bring motions, so that she could effectuate her other constitutional rights.

There were 4 of us sitting in chambers at the Southdale Courthouse, where Judge Wexler was assigned that day. Judge Wexler, me (acting as defense attorney), a second defense attorneys, and a municipal prosecutor. Judge Wexler was reading another judge’s written order on a motion my client had brought prior. Pointing to the order, Judge Wexler said,

“This is not the first black person to appear in my courtroom. If we allow these people to bring these motions, they will clog the system.”

Judge Wexler’s statement caused me a lot of concern. In a system that had acknowledged the statistical reality of the over-charging, over-conviction of people of color, this showed an unwillingness to deal with the issue in the case. I was concerned about Judge Wexler’s bias (and the effect it could have on my client), but also about systemic bias.

But my focus for this blog is the aftermath of that statement.

There were four people in that room when the statement was made on January 8, 2002. I immediately reacted to the statement, expressing my concerns about the statement – directly to Judge Wexler. This was appropriate, both in representing my client, and to give Judge Wexler a chance to explain himself. I raised the findings of the 1993 Task Report of the Supreme Court Committee. (See article about that report here and another article about the statistics here). I said perhaps things had to start to be done differently.

We discussed it. Eventually, Judge Wexler backed down a bit, stating that perhaps my client’s case was an “exception.” (Although her motion scheduled for that day never got heard.) In other words, this was not an isolated statement that I might have misheard, or taken out of context. Judge Wexler’s views were clearly stated. I, in representation of my client, clearly opposed those views.

At no time did Judge Wexler withdraw the statement quoted above.

The Prosecutor left the room.

I made note of the statement quoted above, and committed it to an affidavit signed under oath. (Both defense attorneys signed affidavits memorializing Judge Wexler’s statement under oath.)

Even after those two affidavits were filed in the district court file, and the issue was discussed in a court hearing, neither Judge Wexler nor the Prosecutor denied that the statement had been made by Judge Wexler in January 2002.

In fact, a lot of time went by before anybody denied it.

Quite some time later, the Prosecutor wrote a letter to the Court of Appeals (not an affidavit submitted under oath), denying in some form that the statement had been made. I am in a unique position in writing this post. I had been in the room. I had heard the statement with my own ears. I knew that the Prosecutor was not telling the truth to the Court of Appeals.

I am not saying this Prosecutor is a bad person. I rather like him. But clearly, once it became an issue in the case, he was not willing to admit that Judge Wexler had made that statement.

Why not?

It seems the statement would not have to be denied, unless is showed Judge Wexler in a bad light. I don’t think this is the only case in which a lawyer “forgot” hearing a statement made by a judge, or lied to protect a judge. Why does this occur? Is it because lawyers fear that they will be harmed (perhaps lose the case, or just be ‘disliked’ by the bench) if they do not? Or, do they think the judge or the judge’s friends will favor them if they do?

We just need to talk more about this vital issue: lying by those within the justice system, a system that tells the public it is about seeking the truth. I mean, call me simplistic, but I think that a system that says it is about seeking the truth should be about seeking the truth.

By this point in the case, now months after that discussion in chambers in January 2002, Judge Wexler had never denied making the statement. Do you know when he finally denied making it?